Apple, the FBI, and Music: An Interview With TechFreedom’s Evan Swarztrauber

Thanks to a public letter this week from Apple CEO Tim Cook to the FBI, the question of how much ‘Silicon Valley’ should cooperate with law enforcement agencies has migrated from the wonky tech world to mainstream news and water-cooler discussions. To learn more about issues of encryption and Tim Cook’s letter we sat down to chat with Evan Swarztrauber, the communications director for TechFreedom.

HeadCount: What is TechFreedom?

Evan Swarztrauber: TechFreedom is a non-profit, non-partisan think tank. Our mission is to promote policies that make innovation possible. No one really knows what the future holds for technology, and it’s important that we allow experimentation, that we allow technology to improve the human condition, and we make sure that regulatory policies enable that type of innovation to flourish.

HC: There’s been a lot of talk about encryption, about a case where the FBI is asking Apple for help in getting info off of an iPhone from one of the San Bernardino Terrorists, and Apple’s CEO Tim Cook released a very strongly worded letter rejecting the FBI request. Can you discuss encryption and the case at hand?

ES: The FBI has one of the San Bernardino terrorist’s phones in its possession, but the FBI can’t get inside to get its contents because it is locked and they don’t know the password. Now the FBI asked a federal judge to order Apple to let them in. The way they want them to let them in is to create software that would disable the auto-erase feature. After you try to get into a phone 10 or so times without the right password the phone will just wipe itself. The brute force attack, which you may have heard of in hacking cases, where you just try every single password under the sun until you get in –that doesn’t work because the phone would erase itself. What the FBI wants is for Apple to remove that feature so they can brute force into that phone.

HC: Does the FBI have the ability to just open any regular mailbox?

ES: Well, yeah. If someone is in possession of evidence that is related to a case and the court orders them to produce it, that’s all fine. The problem here is that Apple is not currently in possession of the information. The FBI is asking them to somehow get that information, by writing new software, and the big concern here is that once that new software exists, it can be used for nefarious purposes. The FBI will say it’s only about this one phone, but that key could be used by a variety of actors, such as cyber criminals, foreign governments, repressive regimes like China and Russia that don’t respect digital civil liberties, and Apple doesn’t want that tool to ever get out there in the first place. So they are really thinking long term; they’re not necessarily that concerned about information in this one phone, but they are worried about the precedent that it would set if they complied. Apple is also concerned about a global perception that American tech products are tainted [by surveillance], and other related efforts by the FBI to mandate backdoors into encryption. That’s where the encryption part comes in. It’s all part of a concerted effort on the part of law enforcement and intelligence agencies to weaken data security for the purpose of facilitating investigations.

HC: What do you think about Apple’s decision here?

ES: Well I think that they are right in the sense that this is not a technology we want out there. I think they are right to take that stand. The thing that’s unclear is this law, the All Writs Act, a law from 1789, that essentially empowers courts to compel people to give them evidence and that makes sense. Like you brought up the mailbox example, if you had evidence in your mailbox about a terrorist attack of course you should have to hand that over under due process. The interesting question that this case raises is the tradeoffs. What are the tradeoffs between due process, the plaintiff’s legitimate interests in getting information, and mandating tech companies to create new software, and what type of impact would that have.

And that’s what’s interesting about this case. It’s not necessarily clear that the court is wrong here to ask for this, it’s really about the other ramifications that would come of this.

HC: The other ramifications being that this could make it easier for the wrong people to get a hold of information and that it looks bad internationally for the US Government to insist American tech companies have backdoors?

ES: Yes. While in this case, Apple is not being asked to create a backdoor into encryption, complying with the order could set a dangerous precedent for future battles over encryption. Technologists have long argued that there is no such thing as a backdoor into encryption that only the good guys can access. So if Congress, or an intelligence agency like the NSA mandates backdoors into tech products, those same vulnerabilities can be accessed by nefarious actors.

A: Have any presidential candidates responded to this Apple letter?

E: Yes! Donald Trump just said Apple should comply and, “Who do they think they are” I believe is the quote. But all you have to do is look at the presidential campaign’s thoughts on encryption, to glean what they would say about this. Now I would be shocked if any of the people who have been bad mouthing encryption, like John Kasich, like Hillary Clinton, like Jeb Bush, if they would not share Donald Trump’s opinion on this issue. If you believe that encryption should have backdoors for law enforcement, why would you think that Apple should not comply with this order? Yes, they are two separate issues, but it’s part of the same concerted effort to get tech companies to undermine cyber security in order to facilitate terrorist investigations.

HC: So what you’re saying is this is one of those issues where opinions don’t divide on purely partisan lines?

ES: Yes. And the usual suspects behind the dynamic duo that is national security and hawkishness, all you have to do is look at Dianne Feinstein and Richard Burr, to see how this is a bipartisan failure in many ways to recognize the value of encryption. It’s really the people on the far left and the libertarian far right that agree encryption is good. And when Rand Paul left the Republican race it really left that void, if I had to guess who the best candidate on encryption would be I’d guess Ted Cruz but he hasn’t talked about the issue really. And on the democratic side I’d guess that Bernie Sanders might be the best on this issue, but he hasn’t talked about it either. So the ones who you might hope to carry the civil libertarian banner are staying silent, whereas the usual suspects like Kasich, Rubio, Bush, they’re talking about how Silicon Valley needs to be more cooperative and figure stuff out for the FBI.

HC: As a music fan, I personally have a good portion of my music library saved on Apple products, if Apple were to create a backdoor, could that put my music in jeopardy?

ES: Well if Apple complies with the current request it would allow the FBI to try as many passwords as it wants until it gets into phone. When it finally gets through, which could take years, the Bureau could see pretty much put anything on that phone, including music. Your entire music library could be compromised if Apple and other companies are forced to write software that disables the auto-erase feature. If Apple is forced to undo that feature for law enforcement purposes, damn right they’ll be able to see your music.

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